Illegal ponds are being emptied, but association vows to fight on

Three illegal ponds that sent an Eagle Point man to jail for water theft are being drained even as the association that now owns the property is suing to get them filled legally.

By MARK FREEMAN

Three illegal ponds that sent an Eagle Point man to jail for water theft are being drained even as the association that now owns the property is suing to get them filled legally.

The Farm of the Family Recreation Association has filed a civil suit against the state of Oregon and the city of Medford over what its sees as its right to fill the reservoirs with water that falls onto its Crowfoot Road property.

The association two weeks ago lost a court motion to block a July 2012 order to drain the ponds and breach the unlicensed dams that created them. The order was part of former owner Gary Harrington's sentencing for repeatedly violating water laws in his 11-year battle with the Oregon Water Resources Department that has garnered international interest over water and property rights.

In the midst of last year's criminal case, Harrington deeded the property to the association and claimed he no longer had control over the ponds, one of which was 13 feet deep and larger than an acre in size.

The association tried to fight the order that the ponds be drained as required in Harrington's sentencing.

But Jackson County Circuit Court Judge Daniel Harris declined to issue a restraining order against the reservoir's draining until the new civil case is settled, prompting association leaders to pop the plugs in the dams after 12 years of acrimony.

Dominic Notter, one of the association members, said they wanted to keep the ponds full because they can be used as a water source to fight any wildfires that break out in their forest community.

"I think it's ridiculous, going into one of the worst fire seasons we've ever seen," Notter said. "I don't get how that would be in the public interest."

But he said the association would leave reservoir's draining valves open until their case is settled.

"If that's what the law says, we will abide by it," Notter said.

Jackson County Watermaster Travis Kelly said Thursday his office was aware that the ponds were being drained but he did not know how fast they were being lowered.

Meanwhile, the 66-year-old Harrington is in the Jackson County Work Center after serving about half of a 90-day sentence for violating his probation by not draining the ponds.

Notter declined to allow the Mail Tribune access to the Crowfoot Road property, saying it would take an association vote to do so.

At issue is whether the reservoir waters legally qualify as part of the Medford Water Commission's Big Butte Creek Basin water right or as "diffused" water like that captured on roofs and collected in rain barrels.

Oregon water managers and state courts have consistently agreed that the roughly 40 acre-feet of water — enough to fill 20 Olympic-sized swimming pools — captured by the ponds is water that falls under the commission's right to all the water in Big Butte Creek and its tributaries.

Also, the dams that created them were built without permits.

Harrington, and now the association, have argued that the ponds are not fed by a creek or other water course and thus not subject to the commission's water right. The water collected falls on the property and should be the association's to store, according to the suit.

State law, however, holds that diffused water must be gathered on an artificial, impervious surface, such as a rooftop. Otherwise, a state water right is needed.

The civil suit specifically seeks to declare the ponds were filled only with diffused water and to keep the dams and valves from being damaged. The suit also seeks reimbursement for costs of the suit.

The state Attorney General's Office is defending the case.

Reach reporter Mark Freeman at 541-776-4470, or email at mfreeman@mailtribune.com.